Arrested? Tell Your Immigration Lawyer!

The intersection of criminal and immigration law is fraught with risk for foreign nationals, whether they are lawful permanent residents, nonimmigrants or completely without legal status. An arrest that results in a conviction even for what people generally consider a minor offense, may, under the immigration laws, result in a foreign national being removed from the United States and unable to return, or denied entry at the border even though he or she has a valid visa. This article presents an overview of the possible perils as well as recommendations to foreign nationals in valid immigration status who find themselves somehow ensnared, even in what they think may be a minor way, in the criminal justice system. (Please note that for individuals who are out of status or undocumented, being arrested and detained will most likely result in being placed in removal proceedings, and depending upon the circumstances, could at times result in mandatory detention during the removal proceedings.)

Anyone who has been arrested knows that the experience can be terrifying as well as deeply embarrassing (and can be exhausting – in New York City, people who are arrested spend 24 hours or more in detention without a place to rest, given only water and maybe a bologna sandwich, before seeing a lawyer and being brought before the judge for the first time; this is tough on the body and the mind). Foreign nationals who are being sponsored for status by their employers and may need to reveal the fact of an arrest during a conference call with HR and immigration counsel regarding their immigration status or pending visa application, may not be forthright due to a fear that their employers might terminate their employment and thus their ability to stay in the US. Or, an individual may fear revealing the fact of an arrest to the family member sponsoring him or her for status. We understand that it can be very painful to have to reveal an arrest to anyone, but cannot emphasize strongly enough that any foreign national arrested for anything, however minor, should reveal that fact to and have it analyzed by an immigration lawyer, preferably before any final action is taken on the criminal charges.

The first thing that all foreign nationals should be aware of, besides the fact that they should exercise their right to remain silent if arrested and their right to an attorney, is that no arrest or conviction is ever rendered invisible to the federal government. Even a conviction that has been vacated will still be noted on an individual’s record. For example, when an individual gets arrested for something minor in New York City like shoplifting, although the case may have ultimately resulted in a dismissal, the individual must acknowledge the fact of the arrest on any immigration forms that raise the question. An immigration lawyer can assist in providing an appropriate explanation to a consulate or USCIS.

All foreign nationals should also be aware of the United States Supreme Court decision issued on March 31, 2010, Padilla v. Kentucky available at http://bit.ly/cr1UH4. In this case, the Supreme Court held that a criminal defense attorney’s failure to advise a client regarding the risk of deportation related to taking a particular plea on a case can amount to ineffective assistance of counsel. Justice Stevens pointed out that

changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

(citation omitted). This is an extremely important decision for foreign nationals, for it provides them some protections in the criminal justice context and brings us closer to recognizing the importance of advice from competent counsel regarding the intersection of criminal and immigration law. Manuel D. Vargas of The Immigrant Defense Project has prepared an excellent practice advisory, available at http://bit.ly/brfTs8.

As public defenders often state, most people, regardless of their level of education, walk out of criminal court after arraignments (the first court procedure during which an arrested individual is advised of the charges and enters a plea of guilty or not guilty; if a person indicates not guilty, the court will determine whether bail should be set on the case or not) without any realistic notion of what happened. This is in part because criminal court proceedings involve their own lingo and, especially in urban centers, judges expect lawyers to move through cases as fast as possible. This fact also underscores the importance of showing a copy of the charges and the outcome of the arraignment to an immigration attorney who can interpret what has happened and provide an overview of the consequences. Always get a copy of all the paperwork associated with a criminal case – copy of the charging document (called a complaint in NYC), copy of the “RAP” sheet, a copy of any orders associated with the case (protective orders, stay away orders, etc.), and evidence of the disposition (called a “Certificate of Disposition” in NYC).

Let’s say a foreign national has been arrested in New York City (Manhattan) for shoplifting a shirt that costs $50. This falls under the charge of Petit Larceny, New York Penal Law Section 155.25. The police will either give the person a Desk Appearance Ticket, indicating when they need to appear in court to answer to the charges, or, most likely, the police will take the person into custody, fingerprint them, and take them to court for arraignments, usually within 24 hours of arrest.

If this is the first time the person has ever been arrested, it is very likely that the prosecution will offer an Adjournment in Contemplation of Dismissal (“ACD”). Under New York law, an ACD is not a criminal conviction, not a finding or admission of guilt, and does not result in a criminal record. Under immigration law, the New York ACD is not a criminal conviction and should have no negative results. The ACD should, however, be distinguished from diversionary programs. As a general matter, diversionary programs are entered into before trial and without any admission of guilt, which is essential to avoiding a “conviction” under immigration law. The definition of “conviction” under Immigration and Nationality Law (INA) Section 101(a)(48)(A) has two prongs: 1) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and 2) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. Some diversionary programs require some admission of guilt and impose certain conditions on the individual, and therefore could meet the definition of “conviction” under the INA. Thus, if a foreign national is offered a diversionary program, he or she should have it analyzed by an immigration lawyer to determine the possible consequences before agreeing to enter into it. The New York ACD, however, does not constitute a conviction under the INA.

Under the ACD, the judge adjourns the case for 6 months and the case will get dismissed at the end of 6 months so long as the individual does not get re-arrested. During that 6 month period (a one-year period for family related cases or marijuana related cases, both of which may trigger other problems in the immigration context), it is advisable that the foreign national should not travel because when he or she reenters the United States, the case will appear as an open, pending matter to the border officials and may result in the person being denied admission or being placed into proceedings. If this was the foreign national’s second arrest, or other factors made the prosecutor reluctant to offer the ACD, the foreign national might be offered a plea to a violation like Disorderly Conduct. A conviction for Disorderly Conduct should not have any negative immigration consequences.

A conviction for Petit Larceny, however, has the potential to cause significant problems for the individual because Petit Larceny falls within the category of crimes “involving moral turpitude” (“CIMT”) under the immigration laws. A conviction for a CIMT can result in various consequences depending upon the context. If a person with an H-1B visa is convicted of a CIMT and goes on a trip to renew his visa stamp at a US consulate abroad, the consulate might deny the visa; or, when he returns, the border officials may not let him into the country or may let him in but place him in removal proceedings. If a person is sponsored by a relative or by a job for permanent residence, her permanent residence application may be denied because of the conviction (and she could end up in removal proceedings). If a person already has a green card and applies for citizenship, a conviction for a CIMT could cause his application for citizenship to be denied and could land him in removal proceedings. One more very important thing to keep in mind: being convicted of a CIMT could, under certain circumstances, subject a foreign national to mandatory detention while they are in removal proceedings.

Where a person has only one conviction for a CIMT, the “petty offense exception” might apply, depending on the circumstances. That exception, which applies in the context of determining “admissibility” and found in Immigration and Nationality Act Section 212(a)(2)(A)(ii)(II), applies only where the maximum possible penalty provided for the section of the law under which the person was convicted does not exceed one year in prison, and the maximum penalty actually imposed on the person was not more than six months in prison. It is important to note that one conviction for a CIMT within 5 years of entering the US for which a sentence of one year or longer may be imposed makes an individual deportable under INA Section 237(a)(2), and no exception exists under that law. Rather, the individual would need to explore whether he or she qualifies for a waiver. A foreign national with a criminal conviction should have the charges and sentence analyzed to determine whether they have been convicted of a CIMT and, if so, whether the exception applies or whether they are eligible for a waiver.

An arrest and conviction (which includes admitting facts sufficient to establish the essential elements of a crime) for the possession of a controlled substance will have devastating effects on a person’s immigration status. Although the law provides the possibility of obtaining a waiver of inadmissibility for a single offense of simple possession of less than 30 grams of marijuana, for any subsequent conviction of an offense involving marijuana or any offense involving any other controlled substance, there is no waiver. The foreign national with such a conviction will be inadmissible, deportable, and subject to mandatory detention. Moreover, even if the individual was not ultimately convicted, the immigration laws allow the government to find a person inadmissible if the government makes a determination that it has “reason to believe” the person has been involved in drug trafficking.

Being arrested, admitting the elements of a crime, or being convicted present very complicated issues for foreign nationals and, regardless of how someone feels about her arrest, she should be sure to contact immigration counsel as soon after the arrest as possible, and ideally, before any final action on the case, to review all the possible problems that might arise. Getting immigration counsel involved early enough can also help to ensure that if a foreign national has to take a plea, the plea might be crafted to avoid negative immigration consequences.

So, if you are a foreign national with an arrest and the issue comes up during a conference call with your employer and immigration counsel, or during a meeting with a sponsoring family member and immigration counsel, let immigration counsel know that there is a personal issue you would like to discuss privately. Have the issue examined, because it could mean all the difference to the outcome of the criminal case and your immigration status!

About The Author

Myriam Jaidi is an Associate with Cyrus D. Mehta & Associates, PLLC where she represents clients on a full range of employment- and family-based immigration matters. Ms. Jaidi worked as a public defender with The Legal Aid Society in New York City from 2002 to 2004. She received her J.D. from the University of Michigan Law School where she served as Editor-in-Chief of theMichigan Journal of Race & Lawand was awarded the Dores McCree Award for Service to the Law School Community. She received her M.A. from Stanford and her B.A.cum laudefrom Harvard University.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.